Sex, Violence, and the First Amendment

The U.S. Supreme Court has ruled that states may pass laws restricting the sale of sexual materials to minors, but may not pass similar laws for violent materials. The difference lies in the Court's traditions regarding obscenity as an exception to First Amendment free speech rights.

Short version: obscenity has to do with sex, not violence.

Protected and Unprotected Speech

The First Amendment does not list exceptions for "the freedom of speech." Nevertheless, the Supreme Court has set aside certain kinds of speech as "unprotected" by the First Amendment. When speech is unprotected, state governments are effectively able to restrict it however they see fit. One major category of unprotected speech is obscenity. Here is the key authoritative text, now known as the Miller Test:

"[O]bscene material is unprotected by the First Amendment. 'The First and Fourteenth Amendments have never been treated as absolutes.' We acknowledge, however, the inherent dangers of undertaking to regulate any form of expression. State statutes designed to regulate obscene materials must be carefully limited. As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value."

— Miller v. California, 413 U.S. 15 (1973), edited for readability

Notice how obscenity is limited to "works which depict or describe sexual conduct." By definition, violence without sexual conduct can't be classified as legally obscene.

Variable Obscenity

In 1965, the owner of a Long Island lunch and periodicals business sold porn magazines to a 16 year old boy. New York had a law with wording similar to an earlier version of the Miller Test, with the addition of "for minors," "to minors," etc. The vendor was charged for violating this law and the case eventually made its way to the Supreme Court.

Can something be protected, non-obscene speech for adults and yet be obscene, unprotected speech for minors? The Courted decided: yes, it can!

"We do not regard New York's regulation in defining obscenity on the basis of its appeal to minors under 17 as involving an invasion of such minors' constitutionally protected freedoms. Rather [the New York law] simply adjusts the definition of obscenity 'to social realities by permitting the appeal of this type of material to be assessed in term of the sexual interests' of such minors. That the State has power to make that adjustment seems clear, for we have recognized that even where there is an invasion of protected freedoms 'the power of the state to control the conduct of children reaches beyond the scope of its authority over adults.'"

— Ginsberg v. New York, 390 U.S. 629 (1968), edited for readability

This is a BIG DEAL. The Court is saying that New York can classify material that's not obscene for adults as obscene for minors because, in general, states can vary the definition of an unprotected speech category where minors are concerned.

Gov. Schwarzenegger vs. Kratos

In 2005, California passed a bill prohibiting the sale or rental of violent video games to minors, where:

"'Violent video game' means a video game in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted in the game in a manner that does either of the following:

(A) Comes within all of the following descriptions:

(i) A reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors.
(ii) It is patently offensive to prevailing standards in the community as to what is suitable for minors.
(iii) It causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.

(B) Enables the player to virtually inflict serious injury upon images of human beings or characters with substantially human characteristics in a manner which is especially heinous, cruel, or depraved in that it involves torture or serious physical abuse to the victim."

— California AB-1179, edited for readability

Section (A) should look familiar. It's similar to the Miller Test adjusted for minors, with two major differences. Part (i) drops the sexual requirement so that it can be applied to violence. Part (iii) completely inverts the serious value check. In the Miller Test, the presence of serious value overrides the other two parts and makes a work non-obscene no matter how offensive it is to a community. In the California law, the presence of offensive elements voids any value in the work. Section (B) puts a ban on additional games, just in case section (A) didn't throw a wide enough net. Altogether, this makes three likely grounds for questioning the law's constitutionality:

• Dropping the sexual requirement.
• Inverting the value check.
• Banning games that fall outside the Miller-esque framework.

Interestingly, the Supreme Court slapped down the law for the first and most basic reason: attempting to regulate violent content rather than sexual content.

The Limits of Control

In Ginsberg, the Court had decided that the obscenity exception for free speech rights could come in an adult version and a minor version. California's video game law raised another question:

Can there be free speech exceptions that only come in a minor version?

There isn't a free speech exception when it comes to violent content for adults, so (1) a brand new exception would be required and (2) it would only apply to minors. First, the Court pointed at precedent against introducing new free speech exceptions for adults:

"Last Term, in Stevens, we held that new categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated. Stevens concerned a federal statute purporting to criminalize the creation, sale, or possession of certain depictions of animal cruelty. [...] We held that statute to be an impermissible content-based restriction on speech. There was no American tradition of forbidding the depiction of animal cruelty—though States have long had laws against committing it.

The Government argued in Stevens that lack of a historical warrant did not matter; that it could create new categories of unprotected speech by applying a 'simple balancing test' that weighs the value of a particular category of speech against its social costs and then punishes that category of speech if it fails the test. [...] We emphatically rejected that 'startling and dangerous' proposition.

— Brown v. Entertainment Merchants Association, 564 U.S. 08-1448 (2011)

Violence may not be a valid free speech exception for adults, but can't it be an exception that only applies to minors?

"[The California Act] does not adjust the boundaries of an existing category of unprotected speech to ensure that a definition designed for adults is not uncritically applied to children. California does not argue that it is empowered to prohibit selling offensively violent works to adults —and it is wise not to, since that is but a hair’s breadth from the argument rejected in Stevens. Instead, it wishes to create a wholly new category of content-based regulation that is permissible only for speech directed at children.

That is unprecedented and mistaken. '[M]inors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them.' Erznoznik v. Jacksonville [...]. No doubt a State possesses legitimate power to protect children from harm [...], but that does not include a free-floating power to restrict the ideas to which children may be exposed. 'Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.' Erznoznik"

— Brown v. EMA, 564 U.S. 08-1448 (2011)

In other words, minors are only subject to the same basic free speech exceptions as adults, though these exceptions may be applied differently to minors. There is no basic free speech exception that has to do with depictions of violence, therefore violent video games are constitutionally protected speech for Americans of all ages.

This applies to books too, if anyone is still reading those things. I do recommend reading the whole majority opinion in Brown v. EMA. It makes excellent points about moral panics, censorship, and violence in children's literature.

Quote of the Day: Mill on Intellectual Freedom

"He who knows only his own side of the case, knows little of that. His reasons may be good, and no one may have been able to refute them. But if he is equally unable to refute the reasons on the opposite side; if he does not so much as know what they are, he has no ground for preferring either opinion. The rational position for him would be suspension of judgment, and unless he contents himself with that, he is either led by authority, or adopts, like the generality of the world, the side to which he feels most inclination. Nor is it enough that he should hear the arguments of adversaries from his own teachers, presented as they state them, and accompanied by what they offer as refutations. This is not the way to do justice to the arguments, or bring them into real contact with his own mind. He must be able to hear them from persons who actually believe them; who defend them in earnest, and do their very utmost for them. He must know them in their most plausible and persuasive form; he must feel the whole force of the difficulty which the true view of the subject has to encounter and dispose of, else he will never really possess himself of the portion of truth which meets and removes that difficulty. Ninety-nine in a hundred of what are called educated men are in this condition, even of those who can argue fluently for their opinions. Their conclusion may be true, but it might be false for anything they know: they have never thrown themselves into the mental position of those who think differently from them, and considered what such persons may have to say; and consequently they do not, in any proper sense of the word, know the doctrine which they themselves profess."

— John Stuart Mill, On Liberty


And even more relevant to yesterday's quote:

"[The Catholic Church] makes a broad separation between those who can be permitted to receive its doctrines on conviction, and those who must accept them on trust. Neither, indeed, are allowed any choice as to what they will accept; but the clergy, such at least as can be fully confided in, may admissibly and meritoriously make themselves acquainted with the arguments of opponents, in order to answer them, and may, therefore, read heretical books; the laity, not unless by special permission, hard to be obtained. This discipline recognizes a knowledge of the enemy's case as beneficial to the teachers, but finds means, consistent with this, of denying it to the rest of the world: thus giving to the élite more mental culture, though not more mental freedom, than it allows to the mass. By this device it succeeds in obtaining the kind of mental superiority which its purposes require; for though culture without freedom never made a large and liberal mind, it can make a clever nisi prius advocate of a cause. But in countries professing Protestantism, this resource is denied; since Protestants hold, at least in theory, that the responsibility for the choice of a religion must be borne by each for himself, and cannot be thrown off upon teachers.

— John Stuart Mill, On Liberty


Yes, "at least in theory." The same applies to voters who trust political teachers to tell them all they need to know about other views, without exposing themselves directly.

Quote of the Day: Craig on Intellectual Freedom

"Be on guard for Satan’s deceptions. Never lose sight of the fact that you are involved in a spiritual warfare and that there is an enemy of your soul who hates you intensely, whose goal is your destruction, and who will stop at nothing to destroy you. Which leads me to ask: why are you reading those infidel websites anyway, when you know how destructive they are to your faith? These sites are literally pornographic (evil writing) and so ought in general to be shunned. Sure, somebody has to read them and refute them; but why does it have to be you? Let somebody else, who can handle it, do it. Remember: Doubt is not just a matter of academic debate or disinterested intellectual discussion; it involves a battle for your very soul, and if Satan can use doubt to immobilize you or destroy you, then he will."

— William Lane Craig, "Q&A #29: Faith and Doubt" from http://www.reasonablefaith.org/faith-and-doubt

Pope v. Illinois — Serious Value According to Whom?

Obscenity is an exception to First Amendment free speech protection. This doesn't mean obscenity is automatically illegal; it means states can choose to restrict it. For example, the following is a misdemeanor in Nebraska:

"It shall be unlawful for a person knowingly to (a) print, copy, manufacture, prepare, produce, or reproduce obscene material for the purpose of sale or distribution, (b) publish, circulate, sell, rent, lend, transport in interstate commerce, distribute, or exhibit any obscene material, (c) have in his or her possession with intent to sell, rent, lend, transport, or distribute any obscene material, or (d) promote any obscene material or performance."
— Nebraska Revised Statute 28-813

Where "obscene" is defined as meaning:

"(a) that an average person applying contemporary community standards would find that the work, material, conduct, or live performance taken as a whole predominantly appeals to the prurient interest or a shameful or morbid interest in nudity, sex, or excretion,
(b) the work, material, conduct, or live performance depicts or describes in a patently offensive way sexual conduct specifically set out in sections 28-807 to 28-829, and
(c) the work, conduct, material, or live performance taken as a whole lacks serious literary, artistic, political, or scientific value;"
— Nebraska Revised Statute 28-807 (emphasis added)

This language is taken from the Supreme Court's Miller Test for obscenity. What's interesting about the Miller Test is that all three parts must hold to classify material as "obscene." A photograph could, for example, be judged by "contemporary community standards" to appeal to sexual interest as a whole, it could depict state-defined sexual conduct in a "patently offensive way," yet if it contains "serious literary, artistic, political, or scientific value" it would not be legally obscene.

Pope v. Illinois was a 1987 Supreme Court case which looked at the "serious value" test. Specifically:

"whether, in a prosecution for the sale of allegedly obscene materials, the jury may be instructed to apply community standards in deciding the value question."

Why is this important? Suppose there's a novel with sexual elements that most people would find offensive. In Oregon, it's legal because people in Oregon still see literary value in it. In Alabama, it's obscenity and you can go to jail for selling the book because people in Alabama don't see literary value in it. I'm picturing Burt Reynolds hauling banned books across state lines.

Case Background

Rockford, Illinois in 1983. Police arrest two part-time clerks in an adult book store for selling porn mags. The clerks are convicted for selling obscenity. (This makes me wonder what officials thought adult bookstores normally sold.)

In both trials, the jury was instructed to decide the question of value according to how "ordinary adults in the whole State of Illinois" would view these magazines. Both clerks were convicted. Both lost Appellate Court appeals. The Illinois Supreme Court passed, but the U.S. Supreme Court took up the issue.

In a majority decision, the Supreme Court decided:

"Just as the ideas a work represents need not obtain majority approval to merit protection, neither, insofar as the First Amendment is concerned, does the value of the work vary from community to community based on the degree of local acceptance it has won. The proper inquiry is not whether an ordinary member of any given community would find serious literary, artistic, political, or scientific value in allegedly obscene material, but whether a reasonable person would find such value in the material, taken as a whole." — Opinion of the Court (emphasis added)

The Supreme Court also decided to send the case back to the Appellate Court to determine whether convictions based on constitutionally faulty jury instructions would be upheld. (See the text of the case for a lively debate about "harmless error.") I had trouble finding out the ultimate fate of the clerks.

Communities and Reasonable Persons

When reading Pope, I kept wondering, "How is 'community' defined? The state, the city, or what?" So I went back and skimmed through Miller v. California. In that case, it's made clear that the "forum community" is meant, i.e. for a California state law the forum community would be the whole state of California. Presumably for a city ordinance, it would be that whole city.

If a state-wide community doesn't get to decide whether a work has "serious literary, artistic, political, or scientific value," who does decide? One answer might be: the entire community of the United States of America. This would make decisions more consistent across state lines, but we could have situations where the people of Oregon see value in a work that Americans as a whole might not esteem. And there may be works of great artistic value to a broadly scattered fanbase that aren't esteemed by any one geographic community as a whole.

Happily, the Court rejected "community standards" outright when it comes to determining value (see the bold text I quoted above). Unhappily, the replacement standard of what "a reasonable person" would find valuable isn't very helpful. Ask a jury to decide whether a reasonable person would find value in a "patently offensive" film and — I suspect — they would take themselves to epitomize reasonable people, note that they themselves don't see value in it, and answer accordingly.

What is Beauty?

In a concurring opinion, Justice Scalia questions the entire notion of legally judging artistic value:

"I must note, however, that in my view it is quite impossible to come to an objective assessment of (at least) literary or artistic value, there being many accomplished people who have found literature in Dada, and art in the replication of a soup can. Since ratiocination has little to do with esthetics, the fabled "reasonable man" is of little help in the inquiry, and would have to be replaced with, perhaps, the "man of tolerably good taste" - a description that betrays the lack of an ascertainable standard. If evenhanded and accurate decision making is not always impossible under such a regime, it is at least impossible in the cases that matter. I think we would be better advised to adopt as a legal maxim what has long been the wisdom of mankind: De gustibus non est disputandum. Just as there is no use arguing about taste, there is no use litigating about it. For the law courts to decide "What is Beauty" is a novelty even by today's standards."

I'm not used to wholeheartedly agreeing with Scalia! Another approach with similarly broad results comes from Justice Stevens' dissent. Referring again to the bold text I quoted above, Stevens writes:

"The problem with this formulation is that it assumes that all reasonable persons would resolve the value inquiry in the same way. In fact, there are many cases in which some reasonable people would find that specific sexually oriented materials have serious artistic, political, literary, or scientific value, while other reasonable people would conclude that they have no such value. The Court's formulation does not tell the jury how to decide such cases.

In my judgment, communicative material of this sort is entitled to the protection of the First Amendment if some reasonable persons could consider it as having serious literary artistic, political, or scientific value."

You can guess by now that both Scalia and Stevens are questioning the utility of having obscenity laws at all, at least as far as consenting adults are concerned. Stevens goes even farther and argues that such laws are unconstitutional because the difference (in this case) between legal pornography and illegal obscenity is not something the clerks could have been expected to know before being charged and convicted:

"Under ordinary circumstances, ignorance of the law is no excuse for committing a crime. But that principle presupposes a penal statute that adequately puts citizens on notice of what is illegal. The Constitution cannot tolerate schemes that criminalize categories of speech that the Court has conceded to be so vague and uncertain that they cannot 'be defined legislatively.' [...] If a legislature cannot define the crime, Richard Pope and Michael Morrison should not be expected to. Criminal prosecution under these circumstances 'may be as much of a trap for the innocent as the ancient laws of Caligula.'"

(You can't see it, but I'm applauding here.)

Finally, Stevens points out that mere possession of obscenity is legal and he characterizes laws against selling or distributing obscenity as an "insult" to a citizenry that has the "right to read and possess material which it may not legally obtain."

I agree and consider obscenity laws — "absent some connection to minors, or obtrusive display to unconsenting adults" — to be outdated relics of a less tolerant age.

Text of Pope v. Illinois, 481 U.S. 497 
Text of Miller v. California, 413 U.S. 15

Quote of the Day: Aristotle On The Use of Maxims

"Further, maxims are of great assistance to speakers, first, because of the vulgarity of the hearers, who are pleased if an orator, speaking generally, hits upon the opinions which they specially hold. What I mean will be clear from the following, and also how one should hunt for maxims. The maxim, as we have said, is a statement of the general; accordingly, the hearers are pleased to hear stated in general terms the opinion which they have already specially formed. For instance, a man who happened to have bad neighbors or children would welcome any one's statement that nothing is more troublesome than neighbors or more stupid than to beget children."

— Aristotle, Rhetoric, Book II, Chapter 21

Impurity and Total Value

I don't remember much about school before high school, but I do remember my seventh grade Reading class and the city-wide furor that came out of it. I think of that class in two parts. In the first, I was surprised that something as fun as reading fiction could be a class in school. My teacher, Ms. L., had a positive attitude and was great at helping individual students find books that interested them. I hope these kind of classes are still popular beyond the standard English Lit curriculum.

Then the crisis. Sticking to the public record, let's just say my mother objected to some of the material that was read out loud in my classroom, then in other Reading classrooms, then in the school library. What followed was a typical book challenge followed by a not-so-typical political movement culminating in her election to the school board. Some challenged books were moved to the high school library and some were reviewed and remained where they were. Emotions were high on both sides, to put it mildly. The whole ordeal changed more in terms of the people involved than the availability of the books in question. I'm intentionally being vague about other people, but I was pulled out of public school.

Fast forward two decades. I'm a card carrying member of the ACLU and about one-third of the way through a Master of Library and Information Science program. One of my personal goals is to reduce the kind of antagonism I witnessed back in junior high. I'm sure there are some irresolvable points of difference, but I'm also sure there is substantial room for improvement. In this post, I want to highlight one way challengers and defenders talk past each other.

Of Cake and Hair

A frequently used metaphor in the Harry Bosch noir detective series is "hair on the cake." This refers to the way one little legal problem with a criminal case can screw the whole thing up. No matter how great 99.99% of the cake may be, the hair ruins it.

Some people take the same approach to books, movies, music, etc. One rude word and the whole work is "trash" so far as they're concerned. One depiction of sex or violence and it's "unsuitable for minors." (Well, in America, it takes violence at the level of Cormic McCarthy rather than John Wayne. Meanwhile, mentioning female sexuality at all is sufficient.)

98% Fat Free!

A very different approach is to focus on the value of a work on the whole. A person who takes this approach might not approve of every element, but still believes the book/movie/album/etc. is worthwhile for its overall message, or its social importance, or a greater proportion of good bits. For example, one of my favorite books is John Stuart Mill's On Liberty, despite some rather disgusting cultural bigotry near the beginning.

The Disconnect

When two people who take these different approaches argue about whether X is a good book, or Y is a good movie, or Z is a good album, they're going to think the other person is totally daft in the very common case where the material has a little objectionable content.

The objector will point at this rude word or that sexual passage as if they're hairs on a cake; since it has these elements at all, the work in question is therefore bad. Meanwhile, the defender will ask, "Did you read the whole thing?" Since the answer is usually "no," the defender is baffled; how could the objector possibly have a valid opinion about the goodness or badness of the work as a whole? And so it goes.

For a relatively recent example, check out this letter to the editor. Scroggins, the objector, writes of the novel Speak:

"As the main character in the book is alone with a boy who is touching her female parts, she makes the statement that this is what high school is supposed to feel like. The boy then rapes her on the next page. Actually, the book and movie both contain two rape scenes."

Scroggins is complaining about the inclusion of any sexual elements in a book about dealing with rape. He doesn't seem to care about the book's impact on helping young people avoid dangerous situations and, especially, helping them deal with life after rape. It mentions sexuality in relation to *gasp* high schoolers, so it has to go. (The author's response is worth a read.)

A Tactic For Reconnecting

Now I do think it's appropriate to respond to objections by listing a work's virtues and weigh them against whatever content people find objectionable, but if it's clear that the objector is of the "hair on the cake" variety, this difference in philosophy needs to be directly addressed. No matter how many virtues a defender lists, the objector can still wave around the "bad bits" as if they settle the matter. By explicitly and repeatedly refocusing the question on whether — in general principle — the presence of bad bits makes a work bad, one of three things might happen:

• The objector refuses to acknowledge the question, which will cause the objector to lose credibility with onlookers who understand the question.
• The objector affirms that the presence of bad bits makes any work bad. The defender can then highlight respected works with bad bits to, again, cause the objector to lose credibility with many onlookers.
• The objector affirms that the presence of bad bits doesn't necessarily make a work bad. Now the objector is publicly committed to weighing the various elements of any given work. Differences in judgment may still occur, but at least a conversation about overall value has become possible.

I hope that greater awareness of these two approaches of "It's impure!" vs. "It has positive total value!" can help everyone in such disputes understand each other better and pin down any essential points of disagreement more quickly. Disagreements happen, but misdiagnosing the disagreement makes resolution unnecessarily difficult.

I'll leave you with a quote from the 1950's that could have been written this year:

"The major characteristic which makes for the all-important difference seems to me to be this: that the selector's approach is positive, while that of the censor is negative. This is more than a verbal quibble; it transforms the entire act and the steps included in it. For to the selector, the important thing is to find reasons to keep the book. Given such a guiding principle, the selector looks for values, for strengths, for virtues which will over shadow minor objections. For the censor, on the other hand, the important thing is to find reasons to reject the book; his guiding principle leads him to seek out the objectionable features, the weaknesses, the possibilities for misinterpretation. The positive selector asks what the reaction of a rational intelligent adult would be to the content of the work; the censor fears for the results on the weak, the warped, and the irrational. The selector says, if there is anything good in this book let us try to keep it; the censor says, if there is anything bad in this book, let us reject it. And since there is seldom a flawless work in any form, the censor's approach can destroy much that is worth saving." — Lester Asheim, Not Censorship But Selection